CoCo

Constitutional Code in the Realm of Culture

Thursday, July 28, 2005

Austrian ISPs Have to Hand Over Customers' IDs

Back in April an Austrian court decided that legally an (dynamic) IP address was the equivalent of a telephone number, thus covered by the low(er) privacy protection regime for metadata, instead of the telecommunications law regime. Now the Austrian Supreme Court (Oberste Gerichtshof) has confirmed this reasoning and decided that ISPs must hand over the names and addresses of their customers to rightsholders in case of infringement (decision July 26th). The Supreme Court thought it irrelevant whether the IP address was static or dynamic, and that constitutional, data protection and telecom provisions were deemed no barrier to the obligation of the providers.

A jubilant Austrian music industry has said that the Supreme Court has given a substantial decision, which will take effect immediately, "in the fight against file-sharing, but also other law breaking on the internet". The head of the Austrian division of the International Federation of the Phonographic Industry, Franx Medwenitsch, said in a press release [German]: "For law breaking there is definitely no anonymity on the internet, with which many file-sharers obviously speculated".

For a background on other European court decisions related to ISPs and customers' IDs, see the following posts:

Spanish EUCD Implementation: DRM v. private copying

Two weeks ago the European Commission started infringement proceedings against Spain for its failure to implement the European Copyright Directive (EUCD) on time. Now European Digital Rights (EDRI) reports that the Spanish government has issued a press release on a new draft Intellectual Property Law, which sees on the EUCD implementation. EDRI provides an overview of the main points of the law, amongst which:

The right to make a private copy is specifically acknowledged. [...]

The law creates a legal context for digital rights management (DRM). Spain has chosen for penal sanctions on circumvention. It also turns into a crime to publish about the very existence of systems to elude copyright protection. The press release however promises some extra measures in order to assure that DRM won't collide with basic user rights.

Tuesday, July 26, 2005

Nitke v. Ashcroft: Back to the Future

Nitke v. Ashcroft was decided yesterday. Barbara Nitke was the main plaintiff in this 'intern speech case', and her website depicts "A Twenty Year Exploration of Sexual Relationship and Desire". This exploration is captured in photographs of pornography and SM, amongst others. This is again speech "that's on the periphery of what's socially accepted".

Social acceptance played a major role in the Nitke v. Ashcroft case under its theoretical, legal term 'local community standards'. These community standards are part of the challenged Communications Decency Act's (CDA, 1996) obscenity test, which was applied on Nitke's speech. A first a take on yesterday's judgment is provided by case lawyer John Wirennius (viaSeth Finkelstein, who was an expert witness in the case and provides a one-stop resource for related documents, including the opinion):

"[On July 25, 2005], the three judge panel of the Southern District of New York issued a 25 page per curiam opinion finding against the plaintiffs--us, to be clear--in Nitke v. Ashcroft. The decision is a stunner--as much for what it doesn't say as for what it does. The Court found that Barbara and NCSF (through The Eulenspeigel Society) had been chilled in their speech and had censored themselves because of the statute allowing the Government to choose which venue any artist using the Internet may be prosecuted in, and applying that local community's standards to all art on the Internet. The Court also found that Barbara and NCSF could not rest easy on the obvious social value of their speech, because not all prosecutors and not all juries see social importance the same way. Then they found we had not produced enough evidence as to how many artists would be chilled, and how local community standards varied. Thus, we had not shown to what extent the standards varied from community to community, and how much speech was effected."

I haven't read the judgment myself, so let me just give some background on the community standards, which have haunted (regulation of) internet speech for almost a decade. The concept of local or contemporary community standards is a part of the three-step Miller-test to judge obscenity, established by the US Supreme Court (Miller v. California 1973). This step was transposed into the CDA, and its section 223(d) provides that anybody displaying to a person under 18 any communication (images included) that "depicts or describes, in terms patently offensive as measures by contemporary community standards, sexual or excretory activities or organs [....]" shall be fined.

In the landmark Reno v. ACLU case (1997) the US Supreme Court struck down the applicability of the CDA for regulation of indecency, but left the community standards provision in place for obscenity, which is unprotected under the First Amendment. With that it did not answer a problem that is caused by applying community standards on internet speech: local communities setting the local legal boundaries for a global medium. The result can be that the community with the lowest threshold to deem something obscene, and thus unprotected by the First Amendment, will set the rules for the whole internet, noting that (geo)localization of content is (still) not a feasible option.

The impossibility of this (geo)localization of content on the internet was part of the question the US Supreme Court concentrated on in another case about the constitutionality of the Child Online Protection Act (COPA), alias Son of CDA, (Ashcroft v. ACLU, 2002): "whether this technological limitation renders COPA's reliance on community standards constitutionally infirm". The Supreme Court's majority opinion was that it does not believe that "the medium's 'unique characteristics' justify adopting a different approach". And it also noted that "If a publisher wishes for its material to be judged by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities." Justice Kennedy rightfully criticized this exclusion of an entire medium in his concurring opinion. But in a dissenting opinion Justice Stevens, writer of the Reno v. ACLU majority opinion, pointed to the real issue:

"Because Web speakers cannot limit access to those specific communities, the statue [COPA - RL] is substantially overbroad regardless of how its other provisions are construed".

The US Supreme Court remanded the COPA case to a Court of Appeals, which virtually trashed the statue (ACLU v. Ashcroft, 2003). The Court of Appeals concluded, as in its first opinion on the COPA:

"COPA essentially requires that every Web publisher subject to the statue abide by the most restrictive and conservative's state's contemporary community standards in order to avoid criminal liability."

Now, in Nitke v. Ashcroft, the community standards come out on top again. What does this mean for the future? Besides prosecutors possibly doing some forum shopping between communities, the future brings the US back to the past. The US's first obscenity test came from Victorian England: the so-called Hicklin rule. In Regina v. Hicklin (1868) Judge "what's in a name" Cockburn wrote:

"The test for obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."

This rule judged 'obscene' content by its effect on those who were most open to it (and not to its effect 'on a person with average sex instincts', for example). Those most vulnerable, most easily offended, set forth the conditions for what the majority could rightfully express and receive. It has taken a long time, but this judgment subjects (internet) speech again to the most puritan of heart: a Victorian victory.

Denmark's National Child Porn Filter

Denmark is apparently going to get a national child porn filter. The article reporting this is extremely low on details, but it says that the introduction comes after the introduction of a national child porn filter in Sweden in May "with great success". I know nothing of Sweden of having such a filter, but Norway's largest telecommunications group came up with one in October last year in cooperation with the national crime investigation service. I haven't read anything since if that was "a great success", but the scheme had some potential technological and related legal problems inherent to filtering, as I pointed out here.

DRM Candy

On the Wireless Japan 2005 Show (Tokyo, July 13-15) Gerhard Fasol saw the latest and sweetest DRM innovation: DRM candy. As Fasol reports:

Digital rights management (DRM) concept study. Digital rights are sold in the style of wrapped sweets, and can be played or eaten. Dropping a digital-right-sweet into the receptacle plays the music or the video corresponding to this right. The sweets/DRMs can be eaten up after their value has been used up.

Maybe it makes the DRM pill that's so biter and hard to swallow for some just a bit more tasty.

Wednesday, July 20, 2005

Jot: German Intranet Copyright Paragraph Dispute

Heise runs a small article on the ongoing discussion about paragraph 52a of the German Copyright Act, which specifies

"the conditions under which teachers and scientists are allowed to make "small parts" of works "publicly available" via Intranet to "certain circumscribed circles of persons - participating in lessons" or "for the sake of their own scientific research."" [quote from the article-RL]

Dutch Collection Organisation Sets Podcasting Rates

The Dutch collection organisation for composers, lyricists and music publishers, BUMA/STEMRA has come up with licensing rates for podcasting. The license structure looks much like that for webcasting, of which the organisation thinks podcasting is a comparable form. Commercial podcasters will have to pay a minimum of 85 euros, and amateurs can get a license for 35 euros per month for an unlimited amount of podcasts.

The rate for amateurs seems rather high, coming to 420 euros per year. (And other collection organisations might set their own, additional rates.) BUMA/STEMRA has said it will trust podcasters that they will notify the organisation of podcasts that include music and pay the set rate. If enforcement of this license system will follow in the future, how many amateur podcasters will stop playing music (and making some promotion for the musicians they plug)? Are amateur podcasts set to become the new talk radio? Or will amateurs start to pick up some instruments themselves?

Tuesday, July 19, 2005

South-Korean Music Labels Target Blogs

In South-Korea, sixty domestic music labels are preparing a collective lawsuit against 4,000 people: not for file-sharing through P2P networks, but by offering music files for download on a popular blog service, Naver:

"We demanded Naver force its personal blog service users to delete music files they illegally uploaded on their blogs," a representative from the labels told reporters. "But Naver passively reacted to our demands, and we decided to file a lawsuit against 4,000 Internet users for violating copyright law."

This is the first action after a recent copyright reform, which apparently outlawed both the illegal uploading and downloading of copyrighted material.

R2G, which tracks piracy and manages licences for music publishers, said complaints by it to Baidu based on recently strengthened copyright regulations had prompted the search company to drop the weblinks to pirated MP3 music files from its music search platform. [link added-RL]

For a background on R2G and its increasing role in the Chinese music market and copyright enforcement efforts, see these earlier posts:

TV Commercial Day for the Content-Commercial Hybrid

Get out your party hats and be ready to do the couch potato: 28 August will be "TV Commercial Day". Well, that's if you live in Japan and are actually willing to give attention to an attempt by the National Association of Commercial Broadcasters "to highlight the benefits of TV advertising to viewers." Its President, Hisashi Hieda, has pointed out that commercials and programs should be viewed as one combined, inseparable unit and said that: "Skipping the commercials would amount to a violation of the Copyright Law.”

Hieda seems to be running high on a TiVo -fever, or at least a fear of the ad skipping machinery. Leaving his "copyright violation" remarks for what they are, what to think of his commercial & content-are-one mantra? It's a mindset that follows from the increasing empowerment of consumers to skip ads, and the reaction of advertisers to reach for more intransparent advertisement measures, trying to make the distinction between content & commercials harder and thus still reaching the masses. At least in Europe there's been a body of legislation which proscribes distinctions between content and commercials for broadcasting, now set to be transposed to internet broadcasting. A murky field (of law), but increasingly interesting, and a reason to celebrate indeed.

Creative Commons: Eye-Rolling Dumb

PC Magazine runs a column by John C. Dvorak called Creative Commons Humbug. A little snip:

This is one of the dumbest initiatives ever put forth by the tech community. I mean seriously dumb. Eye-rolling dumb on the same scale as believing the Emperor is wearing fabulous new clothes.

Follow the obvious points in a poorly executed analysis. At INDICARE Péter Benjamin Tóth does a (bit) better job under a strangely similar title: Creative Humbug. Start there, forget Dvorak, if you feel to discuss/read on the topic.

Jot: African IP & IT Discussion Forum

Want to find out what's going on in the African Intellectual Property / Information Technology sphere? Got some spare time on your hands? The next five weeks you can drop in, read and discuss about a variety of topics at this forum. Topics will include, amongst others:

The regulation would exclude all non-commercial or private, and individual communications.

The papers make a bit of a distinction between linear and non-linear audiovisual communications, with the first also being subject to "lighter and modernized" rules of the Television without Frontiers Directive. The first paper explains the distinction:

[N]on-linear audiovisual services would cover on-demand services where users/ viewers are able to choose the content they wish at any time, e.g. video-on-demand, web based news services, etc., whatever the delivery platform.

The notion of linear audiovisual services would only cover services that are scheduled, i.e. where there is a succession of programmes arranged throughout the day by the responsible editor and the viewer does not control the timing of the transmission.

[I]t's hard to predict what, if anything will sprout out of Brussels bureaucratic maze. Still, it kind of makes you glad that over here we have that pesky First Amendment to protect us (well, usually) from such regulatory musings.

From both articles speaks a fear of state involvement in internet regulation. While this may be benign, and the "bureaucratic maze" has resulted in some intransparent and sometimes overbroad regulation, one might aks why to shoot down any regulatory initiative, because it's by the state (or the European Commission, for that matter). I haven't yet gone through the proposals at length, and more than likely they will be open to criticism, but they focus on problems that not just have no merits because the internet is involved. Commercial communications will have a growing impact on the future of the internet. To reach the user's attention commercial parties will increasingly use manipulative measures, relating to the technological process, rather than the content. Identification of these measures, of the involvement of a commercial party that seeks to manipulate for commercial gain, may ask for more extensive protection of user interests. Regulation of commercial speech is a difficult subject, and will be hard to tackle. And as always with regulation on a European level, a question will be in how far users, and not the commercial interests against which these proposals seek to offer protection, will be the real winners. Only in recent years there is a tendency to increase consumer protection, but more than often it were the core principals of the EU (free movement of goods and services) that came out on top really. So, things can go bad here, by misplaced regulations, but also by a lack of protective intervention out of fear for state involvement.

Thursday, July 14, 2005

Irish High Court Orders Release IDs File-Sharers

The Irish High Court has ordered several ISPs to release the names of 17 file-sharers in a July 8th decision. The Irish Recorded Music Association (IRMA) will now offer the file-sharers a settlement, and if not accepted, pursue the alleged copyright infringements in court.

The High Court was told yesterday that Eircom and BT are not opposing the "substantive" proceedings by four music companies aimed at securing the names of persons who have uploaded thousands of music tracks onto file-sharing networks.

The proceedings could lead to actions for damages being brought against those persons.

Yesterday, while not opposing the action, John Gordon SC for BT Communications Ireland Limited said he wanted to make submissions as to how the court should exercise its discretion regarding the form of order in the case. It is believed those submissions will relate to how the rights of the music companies should be balanced against consumers.

[...]

Mr Gordon said he proposed to file an affidavit by tomorrow for the purposes of assisting the court as to how its should exercise its discretion in the matter.

His client was not opposing the proceedings, but believed the submissions would assist the court in exercising its discretion in the correct manner in relation to how consumers were affected.

In plain words: the ISPs involved, Eircom and BT, did not put up a legal fight for the privacy rights of their customers. Instead, they chose for legal cooperation, and tried to influence the decision with "an affidavit". I haven't seen this affidavit, but one might think that the ISPs weighed their own possible liability against the interests of their customers, with the last loosing out. This stands in contrast to the recent Dutch court case, which resulted in ISPs not having to hand over their customer's IDs.

Not just users' (privacy), but also the law in general looses here. With claims uncontested and not put to the test, the music industry may have reached a fine result, but it provides little more clarity on the current legal standing of file-sharing issues. A missed chance. A question is now if customers will find a chance to hold their ISPs liable for putting up no opposition.

- - -

LaterThe Irish-Dutch connection is a bit stronger: according to European Digital Rights (EDRI) both the Irish and Dutch music industry organisations used the services of the American company MediaSentry. For the Dutch judge this was (under Dutch regulations) unacceptable. The Irish High Court apparently has less dificulty (maybe due to a lack of opposition) to make another judgement . According to the Irish Times (June 9th) it

"noted an undertaking by the record companies that the information would be used only for the purpose of seeking redress for alleged infringement of the copyright of sound recordings and granted the order on that basis."

Wednesday, July 13, 2005

AllofMP3 Fallout Hits German Sites

The German branch of the International Federation of the Phonographic Industry (IFPI) is creating a legal wave from the AllofMP3.com decision and riding it all the way to iRights.info [German]. A wave, since it's sending out warning notices to sites for linking to AllofMP3; all the way, because iRights is arguably an informative website, providing critical but independent background to digital copyright issues. The German IFPI already sent a notice to online magazine Heise demanding a link to AllofMP3 to be removed from one of its articles. The German IFPI bases its demands on the court decision that prohibited the making available of unlicensed music files within Germany by the Russian AllofMP3. In the notice to Heise, similar of that sent to iRights, the IFPI claims:

"By establishing a hyperlink to the Internet page in question you are enabling the acquisition of copyright protected sound recordings of our clients via the illegal download offer. By illegally providing public access you are thereby objectively supporting the illegal dissemination of copyright protected sound recordings [...] or even aiding and abetting such activity."

The IFPI also referred to an earlier case involving Heise, in which the linking to a site that provided circumvention software in a news article was deemed illegal. That ruling was appealed by Heise, and will likely be decided later this month. In the meantime iRights notes that not only did it already take down the link to AllofMP3 before the IFPI sent out its notice, but that the AllofMP3 decision can not yet be legally enforced, since it has not yet been served to the operator of AllofMP3.

The IFPI's tactics are understandable from an enforcement perspective. It is questionable whether the operator of AllofMP3 will stop making downloads available within Germany, let alone if he is able to do so at all. So, while the decision establishes the illegality of AllofMP3's practice under German copyright law, and provides a prohibition thereof, more importantly is its (intended) side-effect: a derived enforcement tool against portals within the German jurisdiction. Overall the effectiveness of this tool may be doubted, and using it against informative/news sites may harm its "public relations" value. A question is how far (private parties like) the IFPI will be allowed to go to (effectively) enforce copyrights. The prohibition of linking is one thing, but there are other, and possibly more effective (technological) measures, such as DNS poisoning. These measures represent different levels of regulation in the internet chain, and raise different legal questions. One can only hope that courts and regulators provide answers that look beyond the direct impact of copyright infringement, and consider the long term influence on the internet infrastructure.

The European Commission is taking the first steps in an infringement procedure under the EC Treaty against France, Spain, Finland and the Czech Republic for their failure to implement the European Copyright Directive (EUCD). The press release is frank about the rightsholders' centered focus of the EUCD:

The 2001 Copyright Directive is an essential plank in updating EU copyright law and providing an adequate level of copyright protection for authors and other right-holders in the digital environment. In this respect, the Copyright Directive requires Member States to provide adequate legal protection against “hacking” or other disabling of that “anti-copying” devices and other equipment used to protect copyright when works are published digitally.

Tuesday, July 12, 2005

Dutch ISPs Don't Have to Provide Customer's IDs to BREIN

Today a Court in the Netherlands has ruled in a summary proceeding that Internet Service Providers don't have to hand over the identifying information of their customers to anti-piracy organisation BREIN. BREIN had requested that the ISPs provided the identifying information behind the IP addresses of alleged file-sharers. The Court ruled that BREIN's collection of IP addresses was not in line with Dutch data protection law, amongst others because BREIN used a professional, American company for the collection.

The premise in this case is that IP addresses are personal data under the Dutch Personal Data Protection Act (WBP), as was confirmed by the main Dutch Data Protection Authority (CBP). BREIN did not contest this, thus accepting the stringent regime that comes with the Personal Data Protection Act. ISPs have to judge if a request by BREIN would be in line with the Personal Data Protection Act, balancing the interests of their customers against BREIN's and weighing the legitimacy of providing identifying information on itself. The ISPs claimed that BREIN's request didn't fulfill the conditions of the Personal Data Protection Act, most importantly in this case because BREIN used a (professional) third-party to collect and process the IP addresses: the American organisation MediaSentry. Last year the CBP decided that the collection and storage of IP addresses may only be legitimate if BREIN would do this themselves. The CBP has not ruled about BREIN's practice of using a third party, but the Court considered that in the current situation the third-party collection can not be deemed legitimate and it is likely that the CBP will rule it illegitimate in the future. Especially, because MediaSentry is an American company and "the United States can't be considered a country with a fitting protection level of personal data". MediaSentry also has not signed a so-called Safe Harbour agreement, conforming to the level of privacy protection under European law. The Court additionally noted that MediaSentry's software scanned all the content of the "shared folder" on the customer's hard disk, which could also contain non-infringing data and personal information. This strengthened the suspicion that BREIN's outsourcing was more privacy invasive.

On these grounds the Court decided that the ISPs not just don't have to hand over the identifying information to BREIN, but that they even "are obligated to deny the request to provide identifying information. The ISPs have to guard that they process personal data [i.c. IP addresses- RL] that have an illegitimate source." Additionally the Court noted that to grant a request like BREIN's it has to be beyond reasonable doubt that the IP addresses are actually connected to customers that really offer illegal music- or other files on their computer. The ISPs showed that BREIN had made considerable errors in making the right connection.

All in all this is a considerable defeat for BREIN, which will appeal the decision. However, the decision is not entirely unfavourable to the organisation. The Court also noted that under the European E-Commerce Directive and the Dutch Civil Code BREIN may request identifying information in a civil case. This was contested by the ISPs, which pointed to criminal proceedings as the road to follow. Also, it is unclear what will happen if BREIN starts to collect and store IP addresses themselves and does not outsource it to (an American) third-party, and is able to match IP addresses to "infringing" customers without substantial error. All questions for future legal deliberations, but for now it's up to BREIN again to make its case.

Germany: Levies on Multi-Functional Devices

After computers and printers a German court has now confirmed that levies should also be fully applicable on multi-functional devices, which combine scanning, copying, printing and sometimes faxing functionality. The Higher Regional Court of Stuttgart followed the German Patent and Trademark Office's proposals on the amounts of levies to be applied. This would bring between 38,35 and 306,78 euros for black & white reproductive devices, and a double amount for color reproductive devices, according to Urheberrecht [German].

The exploitation organisation VG Wort sees its demands for remuneration confirmed. It notes that the Court decision has clarified that multi-functional devices have to be treated like copying machines under copyright law and that this also means that users may make copies that fall within the private sphere, having paid a fair remuneration. Branch organisation BITKOM thinks that the amounts for remuneration are excessive, pointing out that for a color multi-functional device of less than 100 euros, at least an additional 76,80 euros would have to be paid. It suggests that it will appeal the decision to Germany's highest court, the Bundesgerichtshof.

A man has been attempting to use a novel defense - he copyrighted his name, and when government officials sent citations for traffic violations and property taxes, he claimed the government officials infringed upon his copyright.

Prosecutors were not deterred, cited an obscure law to counter the "copyright defense", and the man was sentenced to two years in jail.

Friday, July 08, 2005

German File-Sharing Round-Up: TV P2P & Advertisement

The news site of the German Institut für Urheber- und Medienrecht provides three decisions on file-sharing. No commentary, just a short round-up:

Apparently a Hamburg Court has prohibited the distribution of the P2P TV software CyberSky TV, again. The software reaches download rates of 400-600 kBit per second so that television broadcasts can be swapped in realtime. Pay channel Premiere feared that its programs would be decoded on a PC and disseminated over the internet using the software and claimed that copyright law doesn't allow the distribution of software that makes the free distribution of its programs over the internet possible. The court followed Premiere's reasoning. Background on the case in this earlier post on the related temporary injunction.Link [German]

The German music industry was victorious in a lawsuit against the Russian site allofmp3, which offers unlicensed music downloads for 2 eurocents per MByte. A Court in Munich has now prohibited allofmp3 to make copyrighted data publicly available within Germany. In the same press release that brought this news, the music industry also stated that it is going to take action against site that support allofmp3, or similar sites, with advertisement or links (see next point).Link [German]

On June 14th a Berlin Court confirmed an earlier injunction and decided that internet portals that provide links to pay sites with downloads of illegal MP3 music files, may be subject to cease and desist orders. The court considered that the portal in question could only claim relief under the Telecommunications law for liability from damages, not for the cease and desist order. A Hamburg court decision that excluded liability for external links could also not be a base for the claimed relief. This decision was also restricted to liability flowing from damages.Link [German]

Decision Scientology Case Delayed

Today the Dutch Supreme Court should have given its decision in the highly anticipated Scientology-case. Over ten years ago the Church of Scientology invoked its copyright against writer Karin Spaink and XS4ALL to prevent the (re)publication (on the internet) of the so-called Fishman Affidavit, a critical testimony from a former Church member about Scientology's treatment of opponents, containing materials copyrighted by Scientology. Legal proceedings have been unwinding ever since, with Scientology's claims being rejected time and again by every court.

"on the last moment Scientology tried to withdraw [its appeal to the Supreme Court]. XS4ALL and Spaink have resisted this with all their strength. [...] It's in line with Scientology's strategy to withdraw itself from lawsuits it has started. XS4ALL hopes that the Supreme Court will not accept this tactic."

Scientology obviously hopes that it will be let off the hook, because it was set up for a defeat by the Supreme Court's main legal counsel, the "Advocaat-Generaal". In March he noted in his advice to the Court that Scientology's copyright might not only yield for the freedom of information, as set out in art. 10 of the European Convention of Human Rights. More subtle, he advised that Scientology can not prohibit the "further communication to the public or reproduction" of the material, since it had been available for two years in the library of an American District Court (based on art. 15 b of the Dutch Copyright Act, which sees on prior publication by a public authority). For an analyses of his advice and the Scientology case, see this earlier post: Scientology Set for Defeat at Dutch Supreme Court.

Now the "Advocaat-Generaal" has to write another advice: whether Scientology may withdraw from the case, after which the Dutch Supreme Court will make its definite decision. One may expect the "Advocaat-Generaal" to judge this request fairly and keep his cool, seeing his well-crafted and laborous advice being give the procedural finger by Scientology. Still, I'd put my money on a just a delay for another defeat of the Sci-Fi sect.

Samuelson on Grokster: Speak No Evil, Hear No Evil

Her answer to the title, or at least part of it, is in the second paragraph:

MGM didn’t really want to win Grokster on an active inducement theory. It has wary of this theory that it didn’t actively pursue the theory in the lower courts. What MGM really wanted in Grokster was for the Supreme Court to overturn or radically reinterpret the Sony decision and eliminate the safe harbor for technologies capable of SNIUs. MGM thought that the Supreme Court would be so shocked by the exceptionally large volume of unauthorized up- and downloading of copyrighted sound recordings and movies with the aid of p2p technologies, and so outraged by Grokster’s advertising revenues—which rise as the volume of infringing uses goes up—that it would abandon the Sony safe harbor in favor of one of the much stricter rules MGM proposed to the Court. These stricter rules would have given MGM and other copyright industry groups much greater leverage in challenging disruptive technologies, such as p2p software. Viewed in this light, MGM actually lost the case for which it was fighting. The copyright industry’s legal toolkit to challenge developers of p2p file-sharing technologies is only marginally greater now than before the Supreme Court decided the case.

And Samuelson isn't all that worried about Grokster's inducement test for (P2P) technology developers:

MGM is concerned that developers of p2p software will articulate a plausible substantial non-infringing use, such as downloading open source software, for their technologies and will be careful not to say anything that directly encourages infringing uses. MGM believes that they will nonetheless secretly intend to benefit from infringing uses that ensue. If there are no overt acts of inducement and no proof of specific intent to induce infringement, and if the Sony safe harbor continues to shield technology developers from contributory liability, MGM will find itself on the losing side of challenges to technology developers for infringing acts of their users. That is why MGM didn’t really want to win the Grokster case on this theory.

French Anti-Piracy Videos: C'est Fun!

Check out these new anti-piracy videos (QuickTime) from the French AFA (Association des Fournisseurs d'Acces et de Services Internet - the association for ISPs) and the SPPF (Société Civile des Producteurs de Phonogrammes en France - a collecting society for independent music producers). Apparently the videos have been tested on their target group (10-19 year olds) and "treating the subject with humour was particularly appreciated and allows a good reception of the message". The message is: "La musique c'est pas gratos !" (Music isn't free!). The messenger is a hysterical laughing skull dressed up as a pirate: Hahahahahahahaaaaa!

Monday, July 04, 2005

DNS Poisoning Requested From Providers by Rights Organisation

The German rights organisation for composers, lyricist and publishers, GEMA, has asked 42 access providers to poison their DNS servers in order to block sites that provide links to eDonkey files. In short, DNS poisoning obstructs the process of converting a URL to a numeric IP address. The GEMA apparently expects the access providers to configure their DNS servers so that "inquiries by end-users are not passed to the correct server, but to an invalid or another pre-defined side." The GEMA also demands that the providers sign a testimony,with which they commit themselves to ensure full blockage under a contractual penalty of 100.000 euro if any of their customers can still reach the targeted site after July 25th.

There's a good reason for the GEMA to target access providers. These are located at the end of the internet chain (source-ISP-"internet"-ISP-user), and usually fall within the (German) jurisdiction, which eases enforcement. However, the effectiveness of this measure may be questioned: users can still enter the numerical IP address of the sites (URL-IP address converters are easily available on the net), and other DNS servers may be used. The GEMA probably thinks that an average user may not be able to take these steps. It also has high expectations of the ability of providers to block the sites, or at least of providers in general, setting a huge sum of 100 000 euro for failure to comply.

The providers in question are still doing their legal evaluations of the request, or have said right out not to comply, because the GEMA is not the kind of judicial instance that can set these kinds of demands. They're considering to bring GEMA's actions to court, in order to see if GEMA has any standing. This question, and GEMA's actions that propel it, are a sign of the times: private parties (rightholders) seeking direct enforcement through private parties (ISPs), stripping down the constitutional protection of speech from the largest (third) private party (users).

In the Pennsylvania child pornography case, slightly reminiscent of this one, new legislation allowed the government to aks access providers to block sites, using DNS poisoning amongst others. In that case there was a law to challenge, constitutional restraints to invoke, a court to review the pressure put on the public (government) - private (users) relationship. While laws may be applicable in the German case, users could "constitutionally" loose out if private demands are enforced by private parties. A judicial review is appropriate here, if for one thing, to test how far decisions to block the information flow can be pushed and taken within the private realm. Even if there's arguably illegal activity involved. Because there always is....arguably.

Chilling Effect of Anti-(Child) Pornography Rules

On June 24th title 18, Section 2257 of the U.S. Code, created under the Child Protection and Obscenity Enforcement Act, took effect. For a background on this section, that threatens to swap pornography and other (explicit) sexual depictions into the realm of child pornography, see this earlier post. Section 2257 will not be enforced until September 7th due to a stipulation between the US Department of Justice and the Free Speech Coalition, which challenges the regulations in court.

The Body Modification Ezine (BME) decided not to wait for the outcome of the challenge and moved all its servers "back into Canada which has far broader protection of speech and the press, as well as the required privacy protections". In this letter the publisher explains his motivation:

The specific laws in question are the "18 USC 2257" regulations, a set of record-keeping rules which the US government claims have been put in place to combat child porn. They stipulate that for all photos published, copies of ID and other information must be kept and that these must be made available to the US Department of Justice for at least twenty hours a week, without warning or warrant required for inspection of the records or our place of business (ie. our home).

This doesn't affect only photos or video directly produced by BME; this would also affect content produced by BME members - so every photo on BME and every photo on IAM could have these requirements applied to it. Any photo that is "sexual" in nature or of a "sadistic" or "masochistic" subject matter (even if the photo is blurred or behind a password wall) is affected - this would certainly include suspension, play piercing, nipple piercing, genital piercing, and of course everything in BME/HARD and BME/extreme.

Whatever one might think of the likelihood that BME' s site will be eyed by the US Department of Justice, the effect of the regulation is clear: its broad scope chills speech that should not be covered and is more than likely protected under the First Amedment. It shows how not just mainstream pornography can be a target, but speech that's on the periphery of what's socially accepted. Section 2257 may be another tool to cut off the edges of the market place of ideas and create a clean, air-conditioned shopping mall. Something the architects of this legislation may have intended all along.

Friday, July 01, 2005

Sweden Implements EUCD, Downloading Illegal

As of today the unauthorized downloading of copyrighted material from the internet is illegal in Sweden. Not just uploaders, but also downloaders (on P2P)networks), may be prosecuted for copyright infringement. That, while downloading is generally considered private copying and deemed legal within the EU.

The downloading prohibition is part of a new set of laws, which implements the European Copyright Directive. These laws also bring the prohibition of anti-circumvention tools and distribution thereof, and establishes a levy on blank digital media.

Taiwanese P2P Wins Copyright Infringement Case

While the week started with a loss for Grokster, it ends with a legal victory for the Taiwanese file-sharing service ezPeer. The International Federation of the Phonographic Industry (IFPI) in Taiwan had filed a lawsuit for copyright infringement against ezPeer, which offers unlimited donwloads to paying subscribers. Yesterday a District Court ruled that ezPeer "did not engage in reproducing or publicly distributing works of copyright holders," according to this news report. "The court also said that current laws and regulations do not specifically ban or limit file-sharing activities." A lawsuit against Taiwan's largest P2P service, Kuro, has yet to be decided.

Of course, the IFPI Taiwan is hugely disappointed, and legal experts are already mentioning the Grokster decision as an example to follow. Considering that ezPeer actually generates money directly from its subscribers, I guess the Grokster standard would not even be needed...if US law would apply.